Redress for women divorced unjustly

EVERYDAY thousands of women are divorced unjustly without any faults on their parts. In deciding the questions relating to divorce, maintenance and some other issues, where the parties are Muslims, Bangladesh is following the Muslim Personal Law (Shariat) like its predecessors Pakistan and India.

It is the obligatory on every husband to provide maintenance to his wife. But after the divorce, a husband is not bound to maintain her beyond the period of iddat. This provision is practiced almost all over the Muslim countries including Bangladesh.

However, in 1985 the Indian Supreme Court decided in Mohd. Ahmed Khan v. Shah Bano Begum that a divorced wife is entitled to maintenance until she remarries, even in the case of Muslims.  

Following the Ayat No. 241 of Surah Baqara, the High Court Division of Bangladesh Supreme Court decided in Muhammad Hefzur Rahman v. Shamsun Nahar Begum, 15 BLD(34), that women are entitled to maintenance beyond the period of iddat. The Court held, “a person after divorcing his wife is bound to maintain her on a reasonable scale beyond the period of iddat for an indefinite period, that is to say, till she loses the status of a divorcee by remarrying another person”.

In 1998, the Appellate Division set aside the judgement. Mustafa Kamal J. observed, “It is plainly inhuman, unjust, inequitable and unfair to impose on a man the burden of maintaining a divorced woman whom either he has not even touched or from whom he receives no consideration after divorce”.  The Apex Court could not be satisfied as to the interpretation given by the High Court referring to the Ayat No. 241, Surah Baqara. For interpretation, the High Court Division picked up the said Ayat in isolation that is strictly prohibited in the Holy Quran itself as well as contrary to the general criterion of interpretation.

In this case, the Arabic term 'Mataa' derived from Ayat No. 241 of Surah Baqara was raised for explanation and got a legal dimension after being illustrated by the learned Judges. The High Court Division considered this term as maintenance that was not accepted by the Appellate Division at all.  

In Pakistan, the Law and Justice Commission have approved a draft Bill namely 'Muslim Family Laws (Amendment) Act 2009' keeping the provision of Mataa entitled to the divorced wife. In Malaysia, under the Section 56 of 'Islamic Family Law (Federal Territories) Act 1984', the women divorced unjustly are entitled to Mataa in addition to their right to apply for maintenance.  The provisions of Mataa are also effective in Iraq, Egypt, Turkey, Jordan, Morocco, Tunisia, Brunei-Darussalam etc. However, Mataa is not similar in each country. It is practiced in different manner. In Egypt, Mataa is equivalent to at least two years' maintenance subject to the consideration of husband's financial status and payable in instalment. In Iraq, a suitable residence is provided for Mataa subject to certain conditions.

The women, who after the divorce are thrown on the street without any roof over their heads, become completely destitute and vulnerable. To support these women, there should be something in addition to the maintenance, whatever it is –Mataa or something other. It is the teaching of Shariat to treat the women with just and due respect.

The writer is an Advocate, Judge Court, Sylhet.